Henry Richards, C.J.
1. The facts connected with this appeal are very fully stated in the order of my learned colleague who referred the case. The suit is one to recover possession of certain property which originally was a quarter biswa asli share which has now been by partition formed into a separate mahal. It appears that in the year 1910 one Kali Charan male an application in the Revenue Court for partition of his four biswa share. A 3 3/4 biswa stood in the names of the plaintiff and his brother, who are the sons of one Nand Kishore. One Kalka Prasad, the present defendant, was also recorded in respect of one-fourth biswa. This is the one-fourth biswa that is now in dispute. On the day after the date filed for the hearing of objections this Kalka Prasad made an application for the partition of the one fourth biswa which stood in his name. He made this application in the same proceeding as the proceeding of Kali Charan. The result was that the partition was held and a mahal of half of the 3 3/4 biswas was made in favour of the plaintiff. Kalka Prasad had a mahal formed of the one-fourth biswa which stood in his name and Kali Charan had a mahal formal of the four biswa share. The plaintiff has now instituted the present suit to recover possession of the mahal allotted to Kalka Prasad. He was met with various objections. The lower appellate court decided in favour of the plaintiff as to half, and in favour of the defendant as to the other half. It held that the plaintiff having regard to what previously occurred was not entitle to the share, the half which he claimed in his own right, but; the half which he claimed by succession to his brother the court has held him entitled to. The defendant has appealed and the plaintiff has filed a cross-objection.
2. Three questions of law have been raised for our decision; firstly it is said that having regard to the partition the suit is barred by the provisions of Section 233(k) of the Land Revenue Act. The second point is that the plaintiff not having included in his application for partition all the shares to which he was entitled cannot now claim what he omitted. The third ground is that the claim is barrel by the rule of res judicata. With regard to the first point, Section 233 of the Land Revenue Act provides that no person shall institute any suit or other proceeding in the Civil Court 'with respect to partition or union of mahals' except as provided in Sections 111 and 112. I find it impossible to hold that the present suit is a suit' in respect of partition or union of mahals' and I have given my reasons for so hoi ling in the judgement this day delivered in Letters Patent Appeal No. 94 of 1915. With regard to the second point I see no reason why a person entitle to more than one share in a mahal is necessarily bound to include in his application for partition all that he is entitled to. No doubt the revenue author ides might, under certain circumstances, refuse to make partition unless the applicant was prepared to have partition of all he was entitled to. No doubt also, if a question subsequently arose as to the title of the plaintiff, an inference might be drawn against the plaintiff, (specially if there was a conflict of evidence) from the fact that when he had an opportunity of putting forward a claim to the dispute I share he had not done so. But these matters are entirely outside the question which we have to decide. Order II, Rule 2, of the Code of Civil Procedure provides that suits in a Civil Court shall include the whole of the claim to which the plaintiff is entitled. But Order II, Rule 2, does not apply to proceedings in the Revenue Court under the Land Revenue Act. In my opinion the mare fact that the plaintiff did not claim all that he was entidel to at the time of partition does not necessarily bar his present claim. The third point, is that of res judicata. The rules of res judicate, will be found in Section 11 of the Code of Civil Procedure. It only arises when the first court is competent to decile the subsequent suit. No doubt, under Section 111 of the Revenue Act, under certain circumstances a Revenue Court becomes a Civil Court and its decrees are to be treated as the decrees of the Civil Court. Those circumstances are to be found in the sec ion itself. Section 111 says: 'If, on or before the day so fixed, any objection is made by a recorded co-sharer, involving a question of proprietary title which has not been already determined by a court of competent jurisdiction, the Collector may either-
(a) decline to grant the application until the question in dispute has been determined by a competent court, or
(b) require any party to the case to institute within three months a suit in the Civil Court for the determination of such question, or
(c) proceed to inquire into the merits of the objection.
Clause 3 provides: 'If the Collector decides to inquire into the merits of the objection, he shall follow the procedure laid down in the Cole of Civil Procedure for the trial of original suits.'
3. Section 112 provides: 'All decrees passed under Sub-section (3) of the preceding section shall be held to be decrees of a court of civil jurisdiction of the first instance.' It thus appears that it is only when an objection is made by a recorded co-sharer involving a question of proprietary title which the Collector determines to decide himself that the decision of the Revenue Court can be held to operate as res judicata. In the present case there was no objection filed at all. Kalka Prasad filed no objection but merely put in a claim (out of time) to have the one-fourth biswa formed into a separate mahal. No. question of title to this one-fourth biswa was ever raised by an objection nor could it have been raised. The court never determined to try the question nor has it in fact ever given any decision on the point. It seems to me therefore that the present suit is not barred, by the rule of res judicata.
4. Some attempt has been made to contend that the defendant was entitled to set up a prior mortgage which he alleges that he paid off. In my opinion this contention is disposed of by the remarks of our learned colleague who referred the case and I entirely agree with the view he has taken.
5. As to the plea of Section 41 of the Transfer of Property Act in my opinion this is disposed of by the lower appellate court and so far as it is a finding of fact it is binding on us in second appeal.
6. In my opinion the appeal should be dismissed and the objection should, be allowed and the decree of the court below should be modified by giving the plaintiff a decree as claimed except as to mesne profits.
7. I agree. It seems to me that there can be no question that Section 233(k) and the rule of res judicata do not bar the present claim in any way. As regards Order II, Rule 2, it is clear that that portion of the Code of Civil Procedure does not apply to the courts acting under the Revenue Act. That Act lays down a procedure in chapter IX for all Revenue Courts. It does make certain portions of the Civil Procedure Code applicable to those courts, but only to a very small extent, and certainly it does not apply Order II, Rule 2. As far as I can see there is nothing in the Revenue Act which will prevent a man from applying in the Revenue Court for the partition of a portion of his share in the mahal and to have that portion separated into a distinct mahal. Under these circumstances it is impossible to apply the principles of Order II, Rule 2, in partition cases in the Revenue Court. With regard to the plea raised under Section 41 of the Transfer of Property Act this is completely settled by the Judgment of the court below. All the circumstances of the case negative the plea that there was any consent either express or implied.
8. In my opinion the appeal should be dismissed. The cross-objection should be allowed so far as the claim for possession of the plaintiff's half share is concerned and also as to costs. I would disallow the claim for mesne profits.
Muhammad Rafiq, J.
9. I concur.
10. The order of the Court is that the appeal will be dismissed, the cross-objection will be allowed save in respect of mesne profits. The plaintiff's claim shall stand decreed except as to mesne profits with costs in all courts.